A Study on the Reform of the Notice and Objection Procedures Related to Secret Investigations under Current Law from the perspective of the Constitutional Right to Judicial Process

Abstract

Considering the purpose of the Constitutional Court's decisions 2012Hun-ma191 (June 28, 2018) and 2016Hun-ma388 (July 21, 2022), which emphasized the importance of post-notification in the case of a secret investigation, and decision 2016Hun-ma344 (August 30, 2018), which saw the defective remedial procedure as an infringement of the right to judicial process, the subject of investigation should be able to request effective remedial procedures to be examined by the court for the illegality of investigative acts during the investigation process, and on the premise of that, the investigative authority should notify that fact. This is a constitutional right derived from the right to judicial process under Article 27 (1) of the Korean Constitution. Therefore, not only the legislative form that has not prepared all notice and objection procedures, but also the legislative form that only has notice procedures but does not has objection procedures violates the right to judicial process of the subject of investigation. Accordingly, the notice and objection procedures under current law on secret investigations should be revised. It would be most desirable to stipulate all statutory provisions on secret investigations and the notice and objection procedures in the Criminal Procedure Act, as in Germany. However, considering the reality in Korea, where special laws have already been mass-produced, the notice procedures should be reorganized in individual special acts as they are now, but at least with regard to the objection procedure, as in Austria and Switzerland, a single provision should be placed in the Criminal Procedure Act to pursue the unity of the legal system.